March 30, 2015

Is Chief Justice Roberts anti-environment?

By Jonathan Wood Attorney

To honor Chief Justice Robert’s first decade on the Supreme Court — more like castigate him — the Constitutional Accountability Center has released a series of papers on the court’s jurisprudence. The most recent of which addresses the court’s environmental cases. Perhaps unsurprisingly, the paper reveals more about the author’s views on environmental law [hint:  it has little to do with law] than with Justice Robert’s views on the subject.

The paper begins with Roberts’ confirmation. Environmentalists were up in arms when Roberts was nominated because he dissented from the D.C. Circuit’s decision not to rehear a challenge to the federal government’s constitutional authority to regulate the take of a “hapless toad” under the Endangered Species Act. Roberts explained that the decision should have been reviewed to resolve a conflict with another court of appeal — something which is strongly disfavored. He did not say that he thought the Endangered Species Act was unconstitutional. Environmentalists objected, as does the paper’s author, rather to Roberts’ suggestion that constitutional limits on the government’s authority matter and the court should be careful to get it right. Roberts’ point seems all the more prescient since a federal court recently declared a similar Endangered Species Act regulation of the Utah prairie dog unconstitutional.

The paper’s analysis of Roberts’ years on the Supreme Court is little better. The first three cases it discusses are not really environmental law cases at all. Rather, they address when a plaintiff can go to court under a doctrine known as standing and what a plaintiff must prove to obtain relief before litigation. Those cases do not create any special barriers to environmentalist litigation, instead they say that the same standards apply in environmental cases as any other. In the standing cases, for instance, the Court held — as it has in every other area of the law — that a plaintiff must show a particular, concrete injury which the court can remedy. In doing so, it rejected an environmental group’s claim that it should be allowed to challenge anyone who does anything that it doesn’t like, a theory that reminds one of H.L. Mencken’s definition of puritanism.

In the eight cases addressing the substance of environmental law, the paper reports that Roberts voted against the environment six times and only in favor of it twice. But this obscures more than it reveals. In none of the cases did Roberts express hostility towards environmental values. Take Massachusetts v. EPA — the case concerning whether greenhouse gases are “air pollutants” regulable under the Clean Air Act. There’s no indication that he voted “no” because he denies the existence of global warming. Rather, he sided with the Environmental Protection Agency — which argued that the Clean Air Act should not be interpreted to apply to these emissions because it would cause anomalous and absurd results. It’s noteworthy that, when EPA switched sides in a case a few years later, the Chief Justice switched his vote as well. Rather than being hostile to the environment, it appears that the Chief Justice is more deferential to executive agencies in these cases than some of the other justices. This would explain three of the votes that the paper classifies as anti-environment. A fourth — concerning which of two agencies was responsible for issuing a permit under the Clean Air Act — is similarly unhelpful in elucidating the Chief Justice’s environmental views.

Perhaps unsurprisingly, the remaining two are cases that PLF litigated, winning both. The author seems to have missed PLF’s other environmental win in the Roberts Court — Sackett. The discussion of our two victories demonstrates that the author’s conception of environmental “law” is nothing of the sort. In Rapanos, the Supreme Court stopped an agency’s assertion of unconstrained authority to regulate just about anything as a “water of the United States” in violation of both the Clean Water Act and the Constitution. The author considers this an anti-environment opinion because the Corps might have used this illegal power to benefit the environment. The other — Koontz — simply held that the government cannot use its permitting authority to extort property owners. Here the author’s argument is even more disturbing. It asserts that according respect for an individual’s constitutional rights will get in the way of environmental protection, thus these rights should yield. If environmental law demanded that individual rights and limits on bureaucrats’ power must be cast aside — as the Constitutional Accountability Center would have it — it would not deserve to be called “law.”

What to read next